a probationer’s silence at such a hearing may be
considered by the judge in arriving at his decision.
IV. RESENTENCING FOR PROBATION
VIOLATIONS
In Black v. Romano, 471 U.S. 606, 105 S.Ct. 2254
(1985), the Supreme Court held that the Due Process
Clause does not require that the sentencing court
explicitly state why it has rejected alternatives to
incarceration before revoking probation and imposing a
custodial sentence.
In State v. Townsend, 222 N.J. Super. 273 (App. Div.
1988), the Appellate Division held that while the 14th
Amendment precludes a State court from automatically
revoking probation and imposing a prison term for
nonpayment of restitution. The court may revoke
probation and sentence defendant within the court’s
sentencing authority where the court finds a deliberate
failure to pay restitution. Where defendant willfully fails
to comply with a restitution order while on probation, a
trial court is not required to consider whether alternatives
other than imprisonment are appropriate.
When the court revokes a suspension or probation, it
may impose on the defendant any sentence that might
have been imposed originally for the offense of which he
was convicted. N.J.S.A. 2C:45-3b; State v. Ryan, 86 N.J.
1, 7 n.4, cert. denied 454 U.S. 888 (1981). A custodial
sentence imposed on probation violation that exceeded
the original term imposed as condition of probation (and
was already served) did not violate double jeopardy. State
v. Franklin, 198 N.J. Super. 407, 409-410 (App. Div.
1985); State v. Burke, 188 N.J.Super. 649 (Law Div.
1983).
The sentencing principles of Roth and Hodge and the
aggravating and mitigating factors in N.J.S.A. 2C:44-1
apply to resentencing on violations of probation (VOP).
State v. Townsend, 222 N.J. Super. 273, 281 (App. Div.
1988).
In State v. Baylass, 114 N.J. 169 (1989) and State v.
Molina, 114 N.J. 181 (1989), the Supreme Court held
that the sentence imposed after revocation of probation
should focus on the original offense, rather than on the
violation as a separate offense.
The only aggravating and mitigating factors that the
trial court may consider in resentencing a probation
violator are those factors that the trial court found at the
time of the original sentencing. State v. Baylass, 114 N.J.
at 176. The court may reweigh the mitigating factors in
light of the probation violation and determine that they
are no longer applicable. Id. at 177.The terms of the original plea agreement do not
survive a violation of probation. State v. Frank, 280 N.J.
Super. 26, 40 (App. Div. 1995), certif. denied 141 N.J. 96
(1995). Thus, the State’s original recommendation for
a sentencing downgrade pursuant to N.J.S.A. 2C:44-
1f(2) does not survive a violation of probation. Id.After revoking a defendant’s probation, a trial court
is required to impose a sentence based upon the
presumptive sentence and the balancing of the
aggravating and mitigating factors which survived the
violation of probation. State v. Frank, 280 N.J. Super. 26,
41 (App. Div. 1995), certif. denied 141 N.J. 96 (1995).A VOP signifies a failure of noncustodial
rehabilitation, and is not a per se aggravating factor
substantial enough alone to justify the imposition of a
parole ineligibility term. State v. Wilson, 226 N.J. Super.
271, 275 (App. Div. 1988), certif. den. 114 N.J. 500
(1989); State v. Smith, 226 N.J. Super. 276, 280 (App.
Div. 1988), certif. denied 114 N.J. 500 (1989).When the penal code was originally enacted, it
provided that multiple periods of suspension or
probation would run concurrently. N.J.S.A. 2C:44-
5f(2). This section of the code was amended, effective
January 12, 1984, to provide that “multiple periods of
suspension or probation shall run consecutively, unless
the court orders these sentences to run concurrently.”
Now there is a presumption of consecutive sentences
whenever a defendant violates probation by committing
a new offense. State v. Sutton, 132 N.J. 471 (1993).V. CREDIT FOR TIME SERVED ON
PROBATION
A defendant cannot demand as a matter of right,
credit for time served on probation. State v. Ryan, 171
N.J. Super. 427, 439-442 (App. Div. 1979), rev’d on other
grounds, 86 N.J. 1, 5-6 (1981), cert. denied, 454 U.S. 880
(1981); State v. Smeen, 147 N.J. Super. 229, 233 (App.
Div.), certif. den. 74 N.J. 263 (1977).The term of imprisonment imposed as a condition of
probation pursuant to N.J.S.A. 2C:43-2b(2) is treated as
part of the sentence, and in the event of a sentence of
imprisonment upon the revocation of probation, the
term of imprisonment previously served as a condition of
the probationary term shall be credited toward service of